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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Save Our Sound OBX v. North Carolina DOT

Case No.

2017 WL 3908093

Court

U.S. District Court - North Carolina

State

North Carolina

Date

9/5/2017

Project

Bonner Bridge

Project Type

Highway

Project Description

The case arose from plans to replace the Bonner Bridge, which carries North Carolina Highway 12 between Bodie and Hatteras Islands in the Outer Banks. The southern end of the Bonner Bridge lies in Pea Island National Wildlife Refuge, which extends from the northern tip of Hatteras Island to the village of Rodanthe. North Carolina DOT (NCDOT) had concluded that the 2.5-mile bridge was approaching the end of its useful life and needed to be replaced. Beginning in the early 1990s, FHWA and NCDOT studied options to replace the Bonner Bridge and make other improvements to NC 12 between the Bonner Bridge and Rodanthe.

FHWA and NCDOT issued a final EIS and Section 4(f) evaluation in 2008, and a revised final Section 4(f) evaluation in 2009. The agencies then planned to proceed with construction in phases. Phase I involved replacement of the Bonner Bridge, while later phases would involve improvements to NC 12 south of the Bonner Bridge, in Pea Island Refuge and Rodanthe. The agencies issued a Phase I EA in May 2010 and FHWA issued a Phase I ROD in December 2010. Phase IIa involved improvements to NC 12 in Pea Island Refuge; the agencies issued a Phase IIa EA in February 2013 and FHWA issued a Phase IIa ROD in October 2013.

Phase IIb involved improvements to NC 12 in Rodanthe and the southern part of Pea Island Refuge, an area which was susceptible to breaches and erosion. The agencies issued a Phase IIb EA in December 2013, in which the preferred alternative was a 2-mile bridge in the existing NC 12 easement to replace the existing surface road. In response to litigation brought by two conservation groups, the agencies and the conservation groups entered into a settlement agreement in April 2015 that required NCDOT to seek approval for a new “jug-handle” bridge in Pamlico Sound as the preferred alternative for Phase IIb, including seeking concurrence from other agencies that it was the least environmentally damaging practicable alternative (LEDPA). The jug-handle bridge in Pamlico Sound would bypass the southern 2 miles of Pea Island Refuge, and the existing roadway for those 2 miles would be removed. Other agencies identified the jug-handle bridge as the LEDPA in June 2015, and FHWA and NCDOT issued a Revised Phase IIb EA in May 2016 and a Phase IIb ROD in December 2016.

Case Summary

The plaintiffs sued NCDOT and FHWA following FHWA’s issuance of the Phase IIb ROD, which approved construction of the jug-handle bridge in Pamlico Sound. The plaintiffs were Save Our Sound OBX, a nonprofit organization whose mission is to preserve Pamlico Sound and surrounding areas, and individual members of the organization, most of whom own property near the proposed construction site for the jug-handle bridge. The plaintiffs alleged that the agencies violated NEPA by not preparing a supplemental EIS. The plaintiffs also alleged that the agencies violated Section 4(f) of the Department of Transportation Act because their decision was predetermined by the 2015 settlement agreement. The conservation groups that were parties to the earlier lawsuit and the 2015 settlement agreement intervened in support of the agencies.

NCDOT moved to dismiss Save Our Sound OBX as a plaintiff on the ground that the organization did not submit comments during the environmental review period. The conservation groups moved to dismiss the Section 4(f) claim on the ground that the plaintiffs did not submit comments during the environmental review period with sufficient detail to put the agencies on notice of the claim. The conservation groups also moved to dismiss the Section 4(f) claim on the ground that the plaintiffs did not allege injuries within the zone of interests protected by Section 4(f). Finally, the conservation groups moved for partial dismissal of the plaintiffs’ NEPA claim to the extent they directly challenged the 2008 FEIS. The court denied all the motions to dismiss.

Key Holdings

Litigation Procedure

WaiverNCDOT moved to dismiss one of the plaintiffs – Save Our Sound OBX – on the ground that the organization did not submit comments during the NEPA process.  For this argument, NCDOT relied on a new statute, enacted as part of the FAST Act, that prohibited plaintiffs from raising issues in court if the concerns had not been raised in comments during the NEPA process.  This FAST Act provision applied to certain “covered projects” defined in Title 41 of the FAST Act.  The court noted that projects subject to 23 U.S.C. § 139 – such as highway projects – were specifically excluded from the definition of “covered projects” in the FAST Act.  For that reason, the court concluded that the FAST Act provision did not apply, and therefore allowed Save Our Sound OBX to proceed with its NEPA and Section 4(f) claims in the lawsuit without having raised those issues in comments submitted the NEPA process.

Standing.  The conservation groups also moved to dismiss the plaintiffs’ Section 4(f) claim on the ground that they did not allege injury to any interest protected by Section 4(f).  The court rejected these arguments, holding that the plaintiffs had standing to bring their Section 4(f) claims.

Individual Plaintiffs.  The individual plaintiffs stated that they made regular use and enjoyment of Pea Island Refuge and the surrounding area, and that the bridge would diminish their future use and enjoyment. The court held that these allegations were sufficient to establish that they had standing to bring a claim under Section 4(f).

Organizational Plaintiff.   The organizational plaintiff, Save Our Sound OBX, alleged that its members had standing individually and that the group’s mission was to preserve Pamlico Sound and its surrounding areas.  Based on the group’s allegations, the court held that it met all three elements required for an organization to have standing:  (1) at least one member of the organization has standing to bring the claim in his or her own right; (2) the organization’s purpose is germane to the subject of the claim; and (3) the organization asserts only claims that do not require the participation of individual members in the lawsuit.

Statute of Limitations.  The conservation groups moved to dismiss the plaintiffs’ NEPA claim to the extent they asserted a direct challenge to the 2008 FEIS because such a challenge was barred by the statute of limitations. The court noted that the 2016 Revised ROD for Phase IIb was the final agency action subject to judicial review because that document represented the agencies’ final decision to approve the jug-handle bridge. The court explained that the scope of judicial review of that decision may include “examination of the 2008 FEIS and any other documents relied upon to justify conclusions set forth in the 2016 Phase IIb ROD.” The court further explained that “the complaint includes no direct challenge to the 2008 FEIS itself. Rather, the complaint challenges the state and federal defendants’ decision to approve the jug-handle bridge as set forth in the 2016 Phase IIb ROD.” Therefore, the court denied the motion.

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